Brexit: EU, EEA Nationals and Family

BREXIT, EU and EEA Applications, Permanent Residence Card and Appeals

The British Nationality (General) (Amendment No.3) Regulations 2015 which came into force on the 12th November 2015 requires individuals relying on the automatic EU right of Permanent Residence after five years must now show they have been issued a Residence Permit or Permanent Residence before making the application for naturalisation.

This will represent a significant change to the way applications for permanent resident status from EEA nationals is dealt with. Previously a residence permit was mainly acquired by both EEA and non-EEA national family members [who derived his / her residential rights from an EEA national] and following 5 years applied for permanent residence or following settlement applied for British Citizenship.

These new rules make it imperative that anyone seeking permanent residence as an EEA citizen/non-EEA family member seek legal advice.

EU National Permanent Residence Application

The current Permanent Residence application fee is £65 per person. The Home Office must make a decision on your case within six months. If it fails to do so, you are entitled to bring a claim for compensation.

There is no English language proficiency or Life in the UK test required to obtain an EU Permanent Residence Card.

The benefits of obtaining an EU Permanent Residence Card

A EU Permanent Residence Card proves your right to employers, landlords and government officials that you have obtained permanent residence status in the UK.

To assist you in understanding the process of obtaining an EU Permanent Residence Card, we have outlined some key facts and benefits of obtaining a Permanent Residence Card below.

Proof of residency status - Before an EU national becomes a permanent resident in the UK s/he must be a qualified person, i.e. an employee, self-employed, student, retired, or self-sufficient for at least five years. There are also potential difficulties with obtaining public funds (especially under the current government policy) before the five-year period is up. By acquiring a Permanent Residence Card, you can be more relaxed in sense of exercising Treaty rights and may access public funds should you need a help;

EU (PR) and British citizenship – From November 2015, EU nationals wishing to apply for British Citizenship must have a Permanent Residence Card and submit it with their application.

Family members, extended family members, same-sex and unmarried partners of an EU national - If you have acquired a Permanent Residence Card it is easier to show officials that you are a ‘settled person’ for the purposes of bringing non-EU family members and unmarried or same-sex partners to live with you in the UK;

Removal and Deportation - In removal and deportation cases, the decision maker will take into account whether a person has acquired permanent residence in the UK. The Home Office can only deport you on serious grounds of public policy or public security if you hold permanent residence status. We have seen that in deportation and removal cases, our clients would benefit from having their right of permanent residence confirmed by holding a Permanent Residence Card.

Protection and Immigration Status - and finally as the people of Great Britain have voted to leave the European Union, if you have obtained a document certifying your right to permanent residence in the UK, you may be better protected to remain in the UK indefinitely. The changes of immigration policy and legislation if the UK government legally and formally exits the EU are still unknown. However, as an EU national with a Permanent Resident Card, you will have peace of mind that you won’t need to evidence your right to permanent residence should the UK exit the EU and you can apply for British citizenship after 12 months.

If you think that you may have entitlement to permanent residence in the UK and you would like to apply for a permanent residence card, please do not hesitate to contact our immigration solicitors in London.

EEA Derivative Residence Cards

If you are the primary carer of a child who has the right to reside in the UK then you may be eligible for an EEA Derivative Residence Card. You can also qualify for an EEA Derivative Residence Card as the child of an EEA national worker or as the child of a primary carer.

Requirements for an EEA Derivative Residence Card as a Primary Carer

In order to qualify for an EEA Derivative Residence Card as a primary carer, you will need to satisfy UK Visas and Immigration that:

You are the primary carer of an EEA national who is under the age of 18, who is living in the UK as a self-sufficient person and would be unable to remain in the UK if you are required to leave the UK; or

You are the primary carer of a British citizen who is residing in the UK and who would be unable to live in the UK or another EEA country if you were required to leave the UK; or

You are the primary carer of a child of an EEA national worker or former worker who is in education in the UK and who would be unable to continue their education if you were required to leave;

You will be considered a primary carer if you are the person’s direct relative (e.g. mother or father) and you either (a) have primary responsibility for that person’s care; or (b) you share equal responsibility for that person’s care with one other person who is not entitled to reside in the UK under the Immigration (EEA) Regulations 2006 and does not have leave to enter or remain in the UK.

Requirements for an EEA Derivative Residence Card as a Child

In order to qualify for an EEA Derivative Residence Card as a child, you will need to satisfy UK Visas and Immigration that either:

You are the child of an EEA national who is, or was, working in the UK. This requires that you were living in the UK when your EEA national parent was working in the UK, that you were in education when your EEA national parent was in the UK and you remain in education; or

You are the child of a non-EEA national parent who has a Derivative Residence Card and you are under the age of 18;

Period of Validity and Limitations

A Derivative Residence Card will prove that you have the right to reside in the UK and will be valid for 5 years, unless your child is due to reach the age of 18 in three years, in which case it will be valid for a period of 3 years.

However, because a derivative right of residence does not arise from the Free Movement Directive (2004/38/EC), the issue of a Derivative Residence Card has the following limitations:

There is no right to permanent residence under the Immigration (European Economic Area) Regulations 2006; and

You will be unable to have other non-EEA national family members join you in the UK under the 2006 Regulations.

If you would like to discuss your eligibility for an EEA Derivative Residence Card or if you require legal assistance in connection with an EEA Derivative Residence Card application or appeal, please contact our immigration solicitors in London.

EEA Family Permits

If you are a non-EEA national living outside the European Union and you would like to travel to the UK with your EEA national family member, or join your EEA national family member in the UK, then you may be eligible for an EEA Family Permit.

An EEA Family Permit is similar to the issue of an entry clearance visa for the UK in that it will enable you to enter the UK as the family member of an EEA national. There is no fee payable to the Home Office for an EEA Family Permit application and the application will be given priority by UK Visas and Immigration.

Requirements for an EEA Family Permit: initial right of residence in the UK

In order to qualify for an EEA Family Permit you will need to satisfy UK Visas and Immigration that:

You are a national of a country that is outside the European Economic Area (EEA);

Your family member is an EEA national (but not British);

You are related to an EEA national in one of the following ways:

You are the family member of an EEA national such as the husband, wife, civil or unmarried partner, parent, grandparent, child or grandchild; or

You are an extended family member of an EEA national, for example an unmarried partner in a durable relationship, brother, sister, uncle, aunt, cousin, etc.; or

You are the main carer of a British citizen or a child who is an EEA national;

Your EEA national family member is travelling with you to the UK; or

Your EEA national family member is in the UK and, if they have lived in the UK for more than three months, is exercising Treaty rights as a worker, self-employed person, self-sufficient person or as a jobseeker.

Period of Validity

An EEA Family Permit is valid for six months and will allow you to leave and re-enter the UK as many times as you wish within the six month validity period.

Before the end of the six month period, you may be eligible to apply for an EEA Residence Card as confirmation of your right of residence in the UK.

If you would like to discuss your eligibility for an EEA Family Permit or if you require legal assistance in connection with an EEA Family Permit application or appeal, please contact our immigration solicitors in London.

EEA Registration Certificates

If you are a citizen of a European Economic Area (EEA) country and wish to prove that you have the right to live and work in the UK, then you may be eligible to apply for an EEA Registration Certificate.

There is no legal requirement to obtain a Registration Certificate in order to live and work in the UK because the right of residence exists as a matter of European Union law. However, a Registration Certificate acts as confirmation of your right of residence in the UK and this may make it easier to obtain various services. A Registration Certificate can also be used to support a family member’s application for an EEA Family Permit or EEA Residence Card.

Requirements for an EEA Registration Certificate: right of residence in the UK

In order to qualify for an EEA Registration Certificate you will need to satisfy UK Visas and Immigration that:

You are working (either in employment or as a self-employed person), studying or are able to support yourself financially and have comprehensive sickness cover.

Period of Validity

Once approved, you will be issued with a Registration Certificate. This will take the form of either an endorsement in your passport or be contained in a free-standing document. Your Registration Certificate will be valid for five years, after which you may be eligible to apply for a Document Certifying Permanent Residence in the UK.

If you are an EEA national who is working, studying or is self-sufficient in the UK and you would like to discuss your eligibility for an EEA Registration Certificate or if you require legal assistance in connection with an EEA Residence Certificate application or appeal, please contact our immigration solicitors in London.

EEA Residence Cards

EEA Residence Cards are issued to non-EEA national family members and extended family members of EEA nationals who are exercising Treaty rights in the United Kingdom. EEA Residence Cards confirm a right of residence in the UK.

There is no legal requirement to obtain a Residence Card because the right of residence exists as a matter of European Union law. However, a Residence Card acts as confirmation of your right of residence in the UK and this will make it easier to re-enter the UK and to prove that you have a right to work in the UK, for example.

Requirements for an EEA Residence Card: extended right of residence in the UK

In order to qualify for an EEA Residence Card you will need to satisfy UK Visas and Immigration that:

Your family member is an EEA national in the UK (but not a British citizen);

You are the ‘family member’ or an ‘extended family member’ of an EEA national.

A ‘family member’ includes:

A spouse or civil partner of an EEA national;

A child of an EEA national or his/her spouse or civil partner who is under 21;

A child of an EEA national or his/her spouse or civil partner, aged over 21 and who is dependent on the EEA national or his/her spouse or civil partner;

A parent or grandparent who is dependent on the EEA national or his/her spouse;

An ‘extended family member’ is someone who does not fall within the above, and includes:

An unmarried partner who is in a ‘durable relationship’;

Other family members, such as brothers, sisters, uncles, aunts, cousins who are dependent on the EEA national or his/her spouse or civil partner. Dependency can be established by showing that you were dependent on the EEA national in their country before moving to the UK, or you formed part of the EEA national’s household in that country before moving to the UK and you continue to be dependent on the EEA national or continue to form part of the EEA national’s household in the UK;

A relative of an EEA national or his/her spouse or civil partner who requires personal care from the EEA national on serious health grounds;

Your family member is exercising Treaty rights in one of the following ways:

As a jobseeker;

As a worker;

As a self-employed person;

As a self-sufficient person;

As a student (please note that if your family member is exercising Treaty rights as a student then you must be their child or their spouse or civil partner).

If you are applying as a family member of an EEA national then the Home Office must issue you with a Residence Card once you have provided the necessary supporting documentary evidence to establish your right of residence.

If you are applying as the extended family member of an EEA national then the Home Office retains a discretion as to whether to issue a Residence Card.

Retained rights of residence

You may also apply for an EEA Residence Card on the basis of having a ‘retained right of residence’. It is possible for a non-EEA national to retain a right of residence where:

The relationship with your EEA national spouse or civil partner has ended with a divorce, dissolution or annulment. You must have been married for at least three years and have spent at least one year in the UK (if you separate but do not divorce, then under EEA law you remain a family member of an EEA national and therefore your right of residence may continue on this basis);

Your EEA national family member has died;

You are a non-EEA national parent with custody of a child who has a right of residence in the UK;

You are the child of an EEA national who has died or left the UK;

Period of Validity

An EEA Residence Card will take the form of an endorsement in your passport and is normally valid for five years. After five years you may be eligible to apply for an EEA Permanent Residence Card as confirmation of your right of permanent residence in the UK.

If you would like to discuss your eligibility for an EEA Residence Card or if you require legal assistance in connection with an EEA Residence Card application or appeal, please contact our immigration solicitors in London.

We encourage you to contact us in the first instance if you are unhappy with the service you receive from us. Contact John O’Callaghan, the complaints partner at j.ocallaghan@rfblegal.co.uk; alternatively in some circumstances you may be able to make use of the ODR platform.